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Explain the meaning of the term 'mens rea'.

Mens rea is the mental element of an offence and each offence has its own level of mental element or state of mind.

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Mens rea is often stated to be the requirement of a 'guilty mind' before any act or actus reus can properly be considered to be criminal. Mens rea is the mental element of an offence and each offence has its own level of mental element or state of mind. The Crown Prosecution Service, on behalf of the state, must prove that the defendant had the necessary mens rea for the offence charged.

In many cases the necessary state of mind that must be established by the prosecution is intention (this is reserved for the most serious crimes) but it is not always required. On some occasions recklessness or negligence may be sufficient.

Whilst mens rea is required in order to establish criminal liability, it is not necessary to prove that the accused had a motive. Motive is the reason for doing something and is not the same. Motive may be useful earlier in an investigation when trying to establish leads and the reason why someone may have wanted to harm or injure someone, but otherwise it is not relevant to the question of whether the accused committed the actus reus or 'guilty act'.

Nor does mens rea necessarily mean that the accused had an intention to commit a criminal act or that the person charged knew that it was unlawful or against the law. Mens rea is about culpability. The criminal law is about prohibiting behaviour which is unacceptable to society as a whole. It is about protecting society and holding to account perpetrators of offences. The criminal law is concerned with ‘blameworthiness’.

Some offences are more serious than others – the more serious the offence the higher the level of mens rea. As a result serious offences carry a higher level of penalty including custodial sentences. It could be argued therefore that a factor in determining whether an offence is serious or not is the level of mens rea.

Intention is reserved for the serious offences i.e. murder, wounding with intent under S18 of the Offences Against the Person Act 1861and robbery.

These levels can be likened to a pyramid. At the top are the serious offences where intention must be proven. Intention is also known as specific intention. In a great many cases the question of whether the defendant intended to bring about a particular consequence will not pose a problem for the jury and the jury will be able to apply common sense to help them answer the question based upon the evidence. It will only be in a few cases that the trial judge will need to advise the jury about the law in this area.

The modern practice is to try and keep any advice straight forward and free from technical language which might unduly complicate matters. Intention has been defined as 'a decision to bring about, in so far as it lies within the accused's power, (the prohibited consequence), no matter whether the accused desired that consequence of his act or not' (Mohan (1976)).

Mohan was the defendant who responded to the police officer's signal to stop by slowing down but then accelerated towards the officer. The officer moved out of the way and Mohan drove off. Mohan was charged with attempt to cause bodily harm by wanton driving at a constable.

Intent is the main element of an attempt and is the only mens rea of attempts. This form of intention is known as direct intent and arises where the defendant is acting to bring about a certain aim or result and intends to achieve this.

A form of intention known as oblique intent or 'foresight of consequences' can be more problematic for the jury. Oblique intent often arises in cases involving consequences which the defendant may argue were not his intention at all. The issue raised then is 'surely the defendant must have realised that the result would arise'. Defining oblique intent has been a challenge for the courts over the years.

Juries are assisted bySection 8 of theCriminal Justice Act 1967but it still leaves open the matter of whether intention can be inferred or found from the evidence. In Moloney (1985), where the defendanthad shot and killed his stepfather as part of a drunken challenge to see who was the quickest to load and fire a shotgun, it was decided that foresight is not the same as intention but it amounts to evidence from which intention can be inferred.

A series of cases followed (Hancock and Shankland (1986) and R v Nedrick (1986) in which the courts sought to refine their approach.

In R v Hancock and Shankland the two defendants dropped lumps of concrete from a bridge into the path of a taxi taking a strike breaker to work during the miners strike of 1984. The driver of the taxi was killed. The defendants said they had only intended to block the road to prevent the taxi taking the miner to work but they were tried and convicted of murder. They appealed and a verdict of manslaughter was substituted. It was reaffirmed that intention to kill or do GBH on the part of the defendant had to be established.

Lord Scarman felt that the Moloney guidelines were defective and may have misled the jury. He was of the opinion that intention was not to be equated with foresight of consequences, but that intention could be established if there was evidence of foresight and the more likely that it was foreseen, the more likely it is that it was intended. In other words foresight was to be regarded as evidence of intention and not as an alternative form of it.

In Nedrick the defendant poured paraffin through the letterbox of a house causing a fire to start and set fire to the house,the house burnt down and one of the children died. He said he had not intended to murder anyone he had only meant to wake up the owner of the house and frighten her, he was convicted of murder.

On appeal the conviction of murder was overturned and a verdict of manslaughter was substituted. Lord Lane said 'Where the charge is murder and in the rare cases where the simple direction is not enough, the jury should be directed that they are not entitled to infer the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant's actions and that the defendant appreciated that such was the case.

Where a man realises that it is for all practical purposes inevitable that his actions will result in death or serious harm, the inference may be irresistible that he intended that result, however little he may have desired or wished it to happen. The decision is one for the jury to be reached upon a consideration of all the evidence.'

This series of cases culminated inR v Woollin (1998) in which the former House of Lords ruled that a jury could find intention where they felt sure that the consequence was a virtual certainty and that the defendant appreciated this. The House preferred to use the word 'find' instead of the word 'infer' used in the previous decision of Nedrick.

The case of Woollin concerned the defendant's act of throwing his very young baby towards a pram some three or four feet away. To many this would appear to be deplorable and wrong – to risk harming the baby in this way. The court had to decide whether this 'obvious risk' was enough, bearing in mind the serious consequences, for the accused to receive a conviction for murder, as the baby had hit a wall and suffered head injuries and died. There was no doubting that the defendant was responsible but the question was whether the defendant realised the risk. Towards the end of his summing up the judge directed the jury that if they were satisfied that the appellant "must have realised and appreciated when he threw that child that there was a substantial risk that he would cause serious injury to it, then it would be open to you to find that he intended to cause injury to the child and you should convict him of murder."

In Woollin the House of Lords approved of the direction in Nedrick but disapproved of the two part questions or test. The direction represents a further development of the concept of oblique intent.

On the second level of the pyramid, so to speak, comes recklessness for less serious offences such as manslaughter, rape, some assaults and criminal damage. Recklessness is the taking of an unjustifiable risk. In other words the defendant realises that there is a risk but decides to go ahead anyway. The test is subjective and was laid down in the case of Cunningham (1957) and became known as Cunningham recklessness. The case of Cunningham concerned a defendant who tore a gas meter from the wall of an empty house in order to steal money contained in the meter. Gas escaped and a woman next door was harmed as a result. He was charged with administering a noxious substance. The issue in the case was the meaning of the term 'maliciously' and it was decided that this could include doing something intentionally or being subjectively reckless.

At one time there were two tests for recklessness under the criminal law and the test to be used depended upon the charge. Subjective recklessness was used for offences against the person and the objective test ( in reality partly objective and partly subjective) was used for other offences such as criminal damage.

This led to obvious criticisms concerning the necessity for two tests and the tests were quite technical. If the objective test was used the the test was based upon what a reasonable person would have done in the circumstances.

However the House of Lords took the opportunity in R vG and another (2003) to decide that the correct approach was to use a subjective test in criminal damage cases and the objective test (laid down in Caldwell 1982) is no longer used.

Negligence is below recklessness in the pyramid of levels of mens rea and is reserved for specific offences such as traffic and driving offences. Negligence, put simply, is failing to meet the standards of a reasonable person. There are some situations where the conduct of the accused is so bad that it amounts to gross negligence. Gross negligence can give rise to gross negligence manslaughter.

In Adomako (1994) it was decided that an anaesthetist was so negligent in failing to notice that an oxygen pipe had become disconnected during an eye operation, that he was convicted of gross negligent manslaughter. The conviction was appealed against but the house of Lords upheld the Court of Appeal and followed the law as stated in Bateman (1925).

Finally, at the bottom of the pyramid, are strict liability offences which are largely regulatory in nature. It is commonly said that strict liability offences may be defined as offences which do not require mens rea. To be more accurate they are offences where mens rea need not be proved for any element of the actus reus.

There are very few examples of common law offences which can properly be considered to be strict liability offences. They are extremely rare but public nuisance and criminal libel are two better known examples. Statutory offences are much more common, even so there are a number of presumptions which exist which help the courts decide whether the offence in question is a strict liability offence.

There is, for example, a presumption that mens rea is required in order for a person to be convicted of a criminal offence. Most law students will remember the case of Sweet v Parsley (1970) which concerned the question of whether mere knowledge could lead to criminal liability involving premises used for the taking of prohibited drugs. The courts decided that in view of the serious consequences for the individual if convicted and the fact that the offence was criminal in nature, mens rea was required for the offence.

It can be seen the concept of mens rea may be different depending upon the nature of the offence. It covers several levels of culpability depending upon the seriousness of the offence and these have been likened to the levels of a pyramid. The more serious levels, such as intention, being reserved for serious offences such as murder where, because of the gravity of the consequences i.e. life imprisonment for murder, the level of mens rea needed to be proved is higher. With manslaughter the consequence, that is the death of the victim, may be the same, but the mens rea may be lower and only require recklessness or negligence.

This essay looks in detail at the meaning of mens rea. The difference between motive and mens rea is explained. The different levels of seriousness of offences and, consequently the different levels of mens rea, are likened to the levels of a pyramid. Oblique intent is also covered in the essay as well as direct intent and criminal recklessness and negligence and, at the lowest level, strict liability offences.